The Extention of Collective Agreements to Minority Unions and Employees Who Are Not Parties Thereto

In Association of Mineworkers and Construction Union v Chamber of Mines of South Africa and Others CCT 87/16, the Constitutional Court (CC) had provided much needed clarity on the application of Section 23 (1) (d) of the Labour Relations Act, which extends collective agreements reached between employers and majority unions and employees to minority unions and employees not party thereto.

 

The background facts are that the Chamber of Mines of South Africa on behalf of its members began negotiating wages and working conditions with National Union of Mineworkers (NUM), Solidarity and United Association of South Africa. The Association of Mineworkers and Construction Union (AMCU) became a party to the negotiations. However, they abandoned the negotiations before the agreement could be reached because they were not happy with the offer made by the Chamber, which the other unions accepted. Furthermore, AMCU notified the chamber and the mining houses of its intention to strike believing that it is not bound by the agreement reached in the said negotiations. The Chamber of Mines responded by applying for an interdict to the Labour Court to prohibit AMCU from embarking on a strike in terms of section 65 (1), on the basis that the cause of strike was settled in the collective agreement, although AMCU was not a party to the agreement, it was bound nevertheless.

 

The main issue was whether an agreement concluded between mining companies and their collective representative on the one hand and unions representing a majority of workers of those companies binds employees at individual mines where their own union, which is not party to the agreement is the majority union. AMCU was the majority union in individual mining operations, but not in the whole company.

 

Section 23 (1) (d) stipulates that a collective agreement binds even employees who are not members of the unions party to the agreement provided those unions “…have as their members the majority of employees employed by the employer in the workplace.”

 

The meaning of the word “workplace” referred to in section 23 (1) (d) had proven to be key in determining the main issue. AMCU had argued that the word “workplace” referred to each individual mining operation.

Further, AMCU had argued that if the statutory definition of the word “workplace” is applied to section 23 (1) (d), then this section would be unconstitutional for the following reasons. The rights to fair labour practices, including the right to bargain collectively through AMCU, the right to strike and the right to freedom of association would be unjustifiably limited.

Furthermore, section 23(1)(d) violates the rule of law, because the extension of the agreement was tantamount to the exercise of public power. AMCU strongly argued that rule of law requires that public power be exercised by state actors and that perming private actors to effectively exercised public power without independent public authority oversight infringes the principle of legality. There is no remedy under the LRA to review section 23(1)(d) extensions. AMCU effectively contends that section 23(1)(d) read with section 65(1)(a) permits private parties to conclude agreements that deny no-parties the right to exercise fundamental Constitutional rights.

THE MEANING OF “WORKPLACE”

The court was of the view that workplace is not the place where any single employee works – like that individual’s workshop or assembly line or field or desk or office. However, it is where the “the employees of an employer” collectively work. The court found that location is not primary – functional organisation is. The key, according to the court, is whether an operation is independent – not where it is located.

The court held that if there are two or more operations and they are independent of one another by reason of their size, function or organisation, then, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation.

The Court confirmed the Labour Court (LC) and the Labour Appeal Court’s (LAC) findings that the individual AMCU majority mines did not constitute independent operations. Notwithstanding, the fact that at some individual mines the companies had concluded separate recognition agreements with AMCU. According to the courts the mining house operated integrally as a single workplace, and that each AMCU majority mines was not an independent operation. The CC however, recognised that there is no definition of the word “independent” or “operation” in the statute. I am of the view that it will be very difficult for a minority union having majority in one mining operation of the company to prove that that such operation is independent in respect of size, function and organisation, from other mining operations of the company in order to constitute a workplace.

THE PRINCIPLE OF MAJORITARIANISM

The CC cited in Kem-Lin Fashions v Brunton, that if there is to be orderly and productive collective bargaining, some form of majority rule in the workplace has to apply. According to the court constitutional rights to strike is violated by section 23(1)(d), but the right can be limited, the best justification for the limitation is the principle of majoritarianism, in this context, benefit orderly collective bargaining. The court also found that section 23(1)(d) was not irrational since it passed the limitation analysis.

By Jeffery Maluleke
jeffery@dyason.co.za